Page:Federal Reporter, 1st Series, Volume 6.djvu/445

 TEXAS EXPRESS CO. V. TEXAS & PACIWO ET. 00. 483 �It is not questioned that dispatch is one of the vital ele- ments in the express business, and I do not question that for the convenience of both parties an express company may contract with a railroad company for such room daily, on passenger or other fast trains, as the railroad can furnish, without thereby excluding or discriminating against any other company or person doing an express business. This question of daily room for any one express company is, how- ever, a subject of concern chiefly to the express company ; the railroad company being only charged in its duty, as an exclu- sive cr.rrier on a public highway, to study and ascertain the current volume of express business offering, and likely to ofiFer, and provide adequate and reasonable accommodation for that business by whatever other agency or agencies, com- pany, or person, one or more, such express business is done,and solicits transportation ; and it is by no means clear to my mind that the f urnishing of one company any reasonable amount of room for adequate compensation would disable or embarras» the railroad company, so as to prevent the railroad from provid- ing adequate transportation for other parties equally entitled to have their matter transported; or, if such be the case, and it is conceded, as I believe it is in the arguments and affida- vits in this case, that the defendants are bound to transport on equal terms for ail persons or companies doing an express business, then I have no doubt that such a contract for daily room to any one person as disables the railroad from serving others equally entitled to be served, is as to ail such other persons or companies illegal and void. �It appears from the affidavit of plaintiff's snperintendent, C. T. Campbell, that the volume of the express business act- ually done over the lines of the International & Great North- ern Eailroad last year (a year, he says, of unexampled activ- ity in this as in ail other trade) did not exceed an average daily haul of 1,985 pounds, and with said roads, as extended, the business of the current year will not be more than 10 per cent, greater in weight of express matter to be transported on said lines than it was last year. To one not an expert in ail the niceties of railroad management it would more readily �v.6,no.5— 28 ��� �